ASU professor takes DEI fight to Arizona Supreme Court

The university's governing body, the Arizona Board of Regents, says professor Owen Anderson lacks legal standing to challenge an agency’s compliance with the statute.PHOENIX (CN) — A university professor fed up with mandatory diversity, equity and inclusion training at Arizona State University asked the state Supreme Court on Tuesday to greenlight his legal challenge of the school’s policy.Arizona law prohibits a state agency, including a university, from requiring an employee to “engage in training, orientation or therapy that presents any form of blame or judgment on the basis of race, ethnicity or sex.” Philosophy and religious studies professor Owen Anderson says ASU’s DEI training does just that.A lower court ruled in December that Anderson had no standing to challenge the policy under A.R.S. § 41-1494 because the statute includes no clear and unambiguous private right of action, meaning enforcement lies solely in the hands of the regulatory body and/or the state attorney general.Because the regulatory body and defendant in this case, the Arizona Board of Regents, directly controls policy at the state’s public colleges and universities, Anderson says the lower court’s analysis trusts the fox to guard the henhouse.“If the statute doesn’t provide a remedy, well then what?” Anderson’s attorney Jon Riches asked the seven justices Tuesday morning. “You have a state actor that is violating the law. An employee whose rights are being violated. A report goes to some elected officials in a public entity, so the same public entity that violated the law can publicly choose whether to follow it or not.”Instead, Riches told the judges there must be an implied private right of action where no precise language creates one.The law requires agencies to make annual reports to their regulatory bodies to demonstrate compliance. Vice Chief Justice John R. Lopez asked Riches whether inserting a second remedy would be to usurp the Legislature’s authority and judgment.“A report is not a remedy,” Riches answered. “That doesn’t give professor Anderson or any of the thousands of employees in this state any relief.”Instead, Riches argued not finding an implied private right of action would create its own separation of powers issue.“The Legislature has said what the policy of the state is,” he said. “It’s the judicial’s responsibility to be the remedial relief.”Anderson sued in 2024 after refusing to participate in ASU’s “Inclusive Communities” training in the years prior. Represented by the conservative think tank Goldwater Institute, Anderson said the questions made him feel “responsible for the actions committed by other members of the individual’s race, ethnicity, or sex,” and “psychological distress because of his demographic characteristics.”Anderson pointed to several topics from the training he deemed problematic, including “acknowledging the history of white supremacy” and “how perceptions of authority and control are not granted to minoritized faculty.”The board claims its training fully complies with the statute, which specifically prohibits placing “blame or judgment” on a specific group or identity.“Blaming, judging, or mistreating people for who they are or what they believe is the exact opposite of the training’s message,” the board stated in its motion to dismiss.Besides, state attorney Thomas Ryerson argued Tuesday that the statute in question, which also prohibits the spending of state monies on such ideas, cannot imply a private right of action because it contains “no textual indicia” of such a right.Textual indicia, Ryerson said, could include mentions of attorneys fees, a statute of limitations or anything else that would point to the possibility for an individual to sue over a state agency’s lack of compliance.Ryerson said other statutes governing the same subject matter and passed around the same time do contain express private rights of action, meaning the Legislature knew it could have included one in this statute and declined.Chief Justice Ann Scott Timmer argued that if a statute contained any language regarding attorneys fees, then a private right of action would not be implied by expressly stated in the text.“If the text is unambiguous, then how can there ever be an implied right?” she asked Ryerson.Ryerson said the court must rely only on legislative intent.Looking for other potential remedies, Justice William G. Montgomery invoked the old legal adage “where there is a right, there is a remedy.”“Is that default principle not existent in Arizona?” he asked.Ryerson said the phrase doesn’t apply because the law in question does not create a right; it merely places a prohibition on a specific government action. If the court were to construe it as a right, then “the court would be undoing the careful articulation of how each of these statutes would be enforced,” he said.The panel didn’t say when it would rule.Subscribe to our free newslettersOur weekly newsletter Closing Arguments offers the latest about ongoing trials, major litigation and rulings in courthouses around the U.S. and the world, while the monthly Under the Lights dishes the legal dirt from Hollywood, sports, Big Tech and the arts.Additional Reads